Ms. Jackson-Lee of
Texas introduced the following bill; which was referred to the
Committee on the
Judiciary, and in addition to the Committee on
Energy and Commerce, for
a period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned

A BILL

To target cocaine kingpins and address sentencing
disparity between crack and powder cocaine.

1.

Short title

This Act may be cited as the
Drug Sentencing Reform and Cocaine
Kingpin Trafficking Act of 2009.

2.

Findings

Congress finds the following:

(1)

Cocaine base
(commonly known as crack cocaine) is made by dissolving cocaine
hydrochloride (commonly known as powder cocaine) in a solution of
sodium bicarbonate (or a similar agent) and water. Therefore, crack and powder
cocaine are simply different forms of the same substance and all crack cocaine
originates as powder cocaine.

(2)

The physiological
and psychotropic effects of cocaine are similar regardless of whether it is in
the form of cocaine base (crack) or cocaine hydrochloride (powder).

(3)

One of the
principal objectives of the Anti-Drug Abuse Act of 1986, which established
different mandatory minimum penalties for different drugs, was to target
Federal law enforcement and prosecutorial resources on serious and major drug
traffickers.

(4)

In 1986, Congress
linked mandatory minimum penalties to different drug quantities, which were
intended to serve as proxies for identifying offenders who were
serious traffickers (managers of retail drug trafficking) and
major traffickers (manufacturers or the kingpins who headed drug
organizations).

(5)

Although drug
purity and individual tolerance vary, making it difficult to state with
specificity the individual dose of each form of cocaine, 5 grams of powder
cocaine generally equals 25 to 50 individual doses and 500 grams of powder
cocaine generally equals 2,500 to 5,000 individual doses, while 5 grams of
crack cocaine generally equals 10 to 50 individual doses (or enough for a heavy
user to consume in one weekend) and 500 grams of crack cocaine generally equals
100 to 500 individual doses.

(6)

In
part because Congress believed that crack cocaine had unique properties that
made it instantly addictive, the Anti-Drug Abuse Act of 1986 established an
enormous disparity (a 100 to 1 powder-to-crack ratio) in the quantities of
powder and crack cocaine that trigger 5- and 10-year mandatory minimum
sentences. This disparity permeates the Sentencing Guidelines.

(7)

Congress also
based its decision to establish the 100 to 1 quantity ratio on the beliefs
that—

(A)

crack cocaine
distribution and use was associated with violent crime to a much greater extent
than was powder cocaine;

(B)

prenatal exposure
to crack cocaine was particularly devastating for children of crack
users;

(C)

crack cocaine use
was particularly prevalent among young people; and

(D)

crack cocaine’s
potency, low cost, and ease of distribution and use were fueling its widespread
use.

(8)

As a result, it
takes 100 times more powder cocaine than crack cocaine to trigger the 5- and
10-year mandatory minimum sentences. While it takes 500 grams of powder cocaine
to trigger the 5-year mandatory minimum sentence, it takes just 5 grams of
crack cocaine to trigger that sentence. Similarly, while it takes 5 kilograms
of powder cocaine to trigger the 10-year mandatory minimum sentence, 50 grams
of crack cocaine will trigger the same sentence.

(9)

Most of the
assumptions on which the current penalty structure was based have turned out to
be unfounded.

(10)

Studies comparing
usage of powder and crack cocaine have shown that there is little difference
between the two forms of the drug and fundamentally undermine the current
quantity-based sentencing disparity. More specifically, the studies have shown
the following:

(A)

Both forms of
cocaine cause identical effects, although crack is smoked, while powder cocaine
is typically snorted. Epidemiological data show that smoking a drug delivers it
to the brain more rapidly, which increases likelihood of addiction. Therefore,
differences in the typical method of administration of the two forms of the
drug, and not differences in the inherent properties of the two forms of the
drug, make crack cocaine potentially more addictive to typical users than
powder cocaine. Both forms of the drug are addictive, however, and the
treatment protocol for the drug is the same regardless of the form of the drug
the patient has used.

(B)

Violence committed
by crack users is relatively rare, and overall violence has decreased for both
powder and crack cocaine offenses. Almost all crack-related violence is
systemic violence that occurs within the drug distribution process. Sentencing
enhancements are better suited to punish associated violence, which are
separate, pre-existing crimes in and of themselves.

(C)

The negative
effects of prenatal exposure to crack cocaine were vastly overstated. They are
identical to the effects of prenatal exposure to powder cocaine and do not
serve as a justification for the sentencing disparity between crack and
powder.

(D)

Although Congress
in the mid-1980s was understandably concerned that the low-cost and potency of
crack cocaine would fuel an epidemic of use by minors, the epidemic of crack
cocaine use by young people never materialized to the extent feared. In fact,
in 2005, the rate of powder cocaine use among young adults was almost 7 times
as high as the rate of crack cocaine use. Furthermore, sentencing data suggest
that young people do not play a major role in crack cocaine trafficking at the
Federal level.

(E)

The current 100 to
1 penalty structure undermines various congressional objectives set forth in
the Anti-Drug Abuse Act of 1986. Data collected by the United States Sentencing
Commission show that Federal resources have been targeted at offenders who are
subject to the mandatory minimum sentences, which sweep in low-level crack
cocaine users and dealers.

(11)

In 1988, Congress
set a mandatory minimum sentence for mere possession of crack cocaine, the only
controlled substance for which there is a mandatory minimum sentence for simple
possession for a first-time offender.

(12)

Major drug
traffickers and kingpins traffic in powder, not crack.

(13)

Contrary to
Congress’s objective of focusing Federal resources on drug kingpins, the
majority of Federal powder and crack cocaine offenders are those who perform
low level functions in the supply chain.

(14)

As a result of
the low-level drug quantities that trigger lengthy mandatory minimum penalties
for crack cocaine, the concentration of lower level Federal offenders is
particularly pronounced among crack cocaine offenders, more than half of whom
were street level dealers in 2005.

(15)

The Departments
of Justice, Treasury, and Homeland Security are the agencies with the greatest
capacity to investigate, prosecute, and dismantle the highest level of drug
trafficking organizations, but investigations and prosecutions of low-level
offenders divert Federal personnel and resources from the prosecution of the
highest-level traffickers, for which such agencies are best suited.

(16)

The unwarranted
sentencing disparity not only overstates the relative harmfulness of the two
forms of the drug and diverts Federal resources from high-level drug
traffickers, but it also disproportionately affects the African-American
community. According to the United States Sentencing Commission’s May 2007
Report, 82 percent of Federal crack cocaine offenders sentenced in 2006 were
African-American, while 8 percent were Hispanic and 8 percent were
White.

(17)

Only 13 States
have sentencing laws that distinguish between powder and crack cocaine.

Pursuant to its authority under section 994
of title 28, United States Code, the United States Sentencing Commission shall
review and, if appropriate, amend the sentencing guidelines to ensure that the
penalties for an offense involving trafficking of a controlled
substance—

(1)

provide tiered
enhancements for the involvement of a dangerous weapon or violence, including,
if appropriate—

(A)

an enhancement for
the use or brandishment of a dangerous weapon;

(B)

an enhancement for
the use, or threatened use, of violence; and

(C)

any other
enhancement the Commission considers necessary;

(2)

adequately take
into account the culpability of the defendant and the role of the defendant in
the offense, including consideration of whether enhancements should be added,
either to the existing enhancements for aggravating role or otherwise, that
take into account aggravating factors associated with the offense,
including—

(A)

whether the
defendant committed the offense as part of a pattern of criminal conduct
engaged in as a livelihood;

(B)

whether the
defendant is an organizer or leader of drug trafficking activities involving
five or more persons;

(C)

whether the
defendant maintained an establishment for the manufacture or distribution of
the controlled substance;

(D)

whether the
defendant distributed a controlled substance to an individual under the age of
21 years of age or to a pregnant woman;

(E)

whether the
defendant involved an individual under the age of 18 years or a pregnant woman
in the offense;

(F)

whether the
defendant manufactured or distributed the controlled substance in a location
described in section 409(a) or section 419(a) of the Controlled Substances Act
(21 U.S.C. 849(a) or 860(a));

(G)

whether the
defendant bribed, or attempted to bribe, a Federal, State, or local law
enforcement officer in connection with the offense;

(H)

whether the
defendant was involved in importation into the United States of a controlled
substance;

(I)

whether bodily
injury or death occurred in connection with the offense;

(J)

whether the
defendant committed the offense after previously being convicted of a felony
controlled substances offense; and

(K)

any other factor
the Commission considers necessary; and

(3)

adequately take
into account mitigating factors associated with the offense, including—

(A)

whether the
defendant had minimum knowledge of the illegal enterprise;

(B)

whether the
defendant received little or no compensation in connection with the
offense;

(C)

whether the
defendant acted on impulse, fear, friendship, or affection when the defendant
was otherwise unlikely to commit such an offense; and

(D)

whether any
maximum base offense level should be established for a defendant who qualifies
for a mitigating role adjustment.

6.

Offender drug
treatment incentive grants

(a)

Grant program
authorized

The Attorney General shall carry out a grant program
under which the Attorney General may make grants to States, units of local
government, territories, and Indian tribes in an amount described in
subsection (c) to improve the provision of
drug treatment to offenders in prisons, jails, and juvenile facilities.

(b)

Requirements for
application

(1)

In
general

To be eligible to receive a grant under
subsection (a) for a fiscal year, an entity
described in such subsection shall, in addition to any other requirements
specified by the Attorney General, submit to the Attorney General an
application that demonstrates that, with respect to offenders in prisons,
jails, and juvenile facilities who require drug treatment and who are in the
custody of the jurisdiction involved, during the previous fiscal year that
entity provided drug treatment meeting the standards established by the Single
State Authority for Substance Abuse (as that term is defined in
section 7(e)) for the relevant State to a
number of such offenders that is two times the number of such offenders to whom
that entity provided drug treatment during the fiscal year that is 2 years
before the fiscal year for which that entity seeks a grant.

(2)

Other
requirements

An application under this section shall be submitted
in such form and manner and at such time as specified by the Attorney
General.

(c)

Allocation of
grant amounts based on drug treatment percent demonstrated

The
Attorney General shall allocate amounts under this section for a fiscal year
based on the percent of offenders described in
subsection (b)(1) to whom an entity
provided drug treatment in the previous fiscal year, as demonstrated by that
entity in its application under that subsection.

(d)

Uses of
grants

A grant awarded to an entity under
subsection (a) shall be used—

(1)

for continuing and
improving drug treatment programs provided at prisons, jails, and juvenile
facilities of that entity; and

(2)

to strengthen
rehabilitation efforts for offenders by providing addiction recovery support
services, such as job training and placement, education, peer support,
mentoring, and other similar services.

(e)

Reports

An
entity that receives a grant under
subsection (a) during a fiscal year shall,
not later than the last day of the following fiscal year, submit to the
Attorney General a report that describes and assesses the uses of such
grant.

(f)

Authorization of
appropriations

There are authorized to be appropriated
$10,000,000 to carry out this section for each of fiscal years 2009 and
2010.

7.

Grants for
demonstration programs to reduce drug use substance abusers

(a)

Awards
required

The Attorney General may make competitive grants to
eligible partnerships, in accordance with this section, for the purpose of
establishing demonstration programs to reduce the use of alcohol and other
drugs by supervised substance abusers during the period in which each such
substance abuser is in prison, jail, or a juvenile facility, and until the
completion of parole or court supervision of such abuser.

(b)

Use of grant
funds

A grant made under
subsection (a) to an eligible partnership
for a demonstration program, shall be used—

(1)

to support the
efforts of the agencies, organizations, and researchers included in the
eligible partnership, with respect to the program for which a grant is awarded
under this section;

(2)

to develop and
implement a program for supervised substance abusers during the period
described in
subsection (a), which shall include—

(A)

alcohol and drug
abuse assessments that—

(i)

are
provided by a State-approved program; and

(ii)

provide adequate
incentives for completion of a comprehensive alcohol or drug abuse treatment
program, including through the use of graduated sanctions; and

(B)

coordinated and
continuous delivery of drug treatment and case management services during such
period; and

To
be eligible for a grant under
subsection (a) for a demonstration program,
an eligible partnership shall submit to the Attorney General an application
that—

(1)

identifies the
role, and certifies the involvement, of each agency, organization, or
researcher involved in such partnership, with respect to the program;

(2)

includes a plan
for using judicial or other criminal or juvenile justice authority to supervise
the substance abusers who would participate in a demonstration program under
this section, including for—

(A)

administering drug
tests for such abusers on a regular basis; and

(B)

swiftly and
certainly imposing an established set of graduated sanctions for non-compliance
with conditions for reentry into the community relating to drug abstinence
(whether imposed as a pre-trial, probation, or parole condition, or
otherwise);

(3)

includes a plan to
provide supervised substance abusers with coordinated and continuous services
that are based on evidence-based strategies and that assist such abusers by
providing such abusers with—

(A)

drug treatment
while in prison, jail, or a juvenile facility;

(B)

continued
treatment during the period in which each such substance abuser is in prison,
jail, or a juvenile facility, and until the completion of parole or court
supervision of such abuser;

(C)

addiction recovery
support services;

(D)

employment
training and placement;

(E)

family-based
therapies;

(F)

structured
post-release housing and transitional housing, including housing for recovering
substance abusers; and

(G)

other services
coordinated by appropriate case management services;

(4)

includes a plan
for coordinating the data infrastructures among the entities included in the
eligible partnership and between such entities and the providers of services
under the demonstration program involved (including providers of technical
assistance) to assist in monitoring and measuring the effectiveness of
demonstration programs under this section; and

(5)

includes a plan to
monitor and measure the number of substance abusers—

(A)

located in each
community involved; and

(B)

who improve the
status of their employment, housing, health, and family life.

(d)

Reports to
Congress

(1)

Interim
report

Not later than September 30, 2009, the Attorney General
shall submit to Congress a report that identifies the best practices relating
to the comprehensive and coordinated treatment of substance abusers, including
the best practices identified through the activities funded under this
section.

(2)

Final
report

Not later than September 30, 2010, the Attorney General
shall submit to Congress a report on the demonstration programs funded under
this section, including on the matters specified in
paragraph (1).

a researcher who
has experience in evidence-based studies that measure the effectiveness of
treating long-term substance abusers during the period in which such abusers
are under the supervision of the criminal or juvenile justice system
involved;

Federal agencies
(such as the Drug Enforcement Agency, the Bureau of Alcohol, Tobacco, Firearms,
and Explosives, and the office of a United States attorney).

(2)

Substance
abuser

The term substance abuser means an individual
who—

(A)

is in a prison,
jail, or juvenile facility;

(B)

has abused illegal
drugs or alcohol for a number of years; and

(C)

is scheduled to be
released from prison, jail, or a juvenile facility during the 24-month period
beginning on the date the relevant application is submitted under subsection
(c).

(3)

Single State
authority for substance abuse

The term Single State
Authority for Substance Abuse means an entity designated by the Governor
or chief executive officer of a State as the single State administrative
authority responsible for the planning, development, implementation,
monitoring, regulation, and evaluation of substance abuse services in that
State.

(f)

Authorization of
appropriations

There are authorized to be appropriated to carry
out this section $5,000,000 for each of fiscal years 2009 and 2010.

8.

Emergency
authority for United States Sentencing Commission

(a)

In
general

The United States Sentencing Commission, in its
discretion, may—

(1)

promulgate
amendments pursuant to the directives in this Act in accordance with the
procedure set forth in section 21(a) of the Sentencing Act of 1987 (Public Law
100–182), as though the authority under that Act had not expired; and

(2)

pursuant to the
emergency authority provided in paragraph (1), make such conforming amendments
to the Sentencing Guidelines as the Commission determines necessary to achieve
consistency with other guideline provisions and applicable law.

(b)

Promulgation

The
Commission shall promulgate any amendments under subsection (a) promptly so
that the amendments take effect on the same date as the amendments made by this
Act.

9.

Increased
penalties for major drug traffickers

(a)

Increased
penalties for manufacture, distribution, dispensation, or possession with
intent To manufacture, distribute, or dispense

There is authorized to
be appropriated to the Department of Justice not more than $36,000,000 for each
of the fiscal years 2009 and 2010 for the prosecution of high-level drug
offenses, of which—

(1)

$15,000,000 is for
salaries and expenses of the Drug Enforcement Administration;

(2)

$15,000,000 is for
salaries and expenses for the Offices of United States Attorneys;

(3)

$4,000,000 each
year is for salaries and expenses for the Criminal Division; and

(4)

$2,000,000 is for
salaries and expenses for the Office of the Attorney General for the management
of such prosecutions.

(b)

Authorization of
appropriations for Department of Treasury

There is authorized to
be appropriated to the Department of the Treasury for salaries and expenses of
the Financial Crime Enforcement Network (FINCEN) not more than $10,000,000 for
each of fiscal years 2009 and 2010 in support of the prosecution of high-level
drug offenses.

(c)

Authorization of
appropriations for Department of Homeland Security

There is
authorized to be appropriated for the Department of Homeland Security not more
than $10,000,000 for each of fiscal years 2009 and 2010 for salaries and
expenses in support of the prosecution of high-level drug offenses.

(d)

Additional
funds

Amounts authorized to be appropriated under this section
shall be in addition to amounts otherwise available for, or in support of, the
prosecution of high-level drug offenses.

(e)

Report of
comptroller general

Not later than 180 days after the end of each
of fiscal years 2009 and 2010, the Comptroller General shall submit to the
Committees on the Judiciary and the Committees on Appropriations of the Senate
and House of Representatives a report containing information on the actual uses
made of the funds appropriated pursuant to the authorization of this
section.

11.

Effective
Date

The amendments made by
this Act shall apply to any offense committed on or after 180 days after the
date of enactment of this Act. There shall be no retroactive application of any
portion of this Act.